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EXHIBIT 3.2
AMENDED AND RESTATED
BYLAWS
OF
HYDRIL COMPANY
(Adopted as of June 20, 2000)
ARTICLE I
OFFICES
1.1 REGISTERED OFFICE. The registered office of Hydril Corporation (the
"Corporation") in the State of Delaware shall be 1209 Orange Street,
Wilmington, Delaware. The name of the registered agent at such address
is The Corporation Trust Company.
1.2 OTHER OFFICES. The Corporation may also have offices at such other
places both within and without the State of Delaware as the Board of
Directors of the Corporation (the "Board of Directors") may determine
from time to time or as the business of the Corporation may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1 PLACE OF MEETINGS. Meetings of stockholders of the Corporation shall be
held at such place within or without the State of Delaware as may be
designated by the Board of Directors or the officer calling the
meeting.
2.2 ANNUAL MEETING. The annual meeting of the stockholders of the
Corporation shall be held on such date and at such time as shall be
determined by the Board of Directors and set forth in the notice of
meeting, and on any subsequent day or days or later time to which such
meeting may be adjourned, for the purposes of electing Directors of the
Corporation and transacting such other business as may properly come
before the meeting. The Board of Directors shall designate the place
for the holding of such meeting, and at least 10 days' notice shall be
given to the stockholders of the Corporation of the place so fixed. If
the day designated herein is a legal holiday, the annual meeting shall
be held on the first succeeding day which is not a legal holiday. If
for any reason the annual meeting shall not be held on the day
designated herein, the Board of Directors shall cause the annual
meeting to be held as soon thereafter as may be convenient. Failure to
hold an annual meeting at the designated time or otherwise shall not
work a dissolution of the Corporation.
2.3 SPECIAL MEETINGS. Unless otherwise provided by the provisions of the
General Corporation Law of the State of Delaware, or any successor
statute (the "DGCL"), or by or pursuant to the Certificate of
Incorporation of the Corporation, as it may be amended or restated from
time to time, including pursuant to any resolution or resolutions
adopted
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in accordance therewith by the Board of Directors providing for the
establishment of one or more series of preferred stock of the
Corporation (the "Certificate of Incorporation"), special meetings of
the stockholders of the Corporation may be called at any time only by
the Chairman of the Board of Directors, by the President of the
Corporation or by the Board of Directors pursuant to a resolution
approved by the affirmative vote of at least a majority of the Whole
Board, and no such special meeting may be called by any other person or
persons (the term "Whole Board" shall mean the total number of
authorized Directors of the Corporation, whether or not there exist any
vacancies in previously authorized directorships). Upon written request
of any person or persons referenced in the immediately preceding
sentence who are authorized to call special meetings of the
stockholders of the Corporation and who have duly called such a special
meeting, it shall be the duty of the Secretary of the Corporation to
fix the date of the meeting to be held not less than 10 nor more than
60 days after the receipt of the request and to give due notice thereof
to stockholders of the Corporation. If the Secretary shall neglect or
refuse to fix the date of the meeting and give notice thereof, the
person or persons calling the meeting may do so. Every special meeting
of the stockholders of the Corporation shall be held at such place
within or without the State of Delaware as the Board of Directors or
the officer calling the meeting may designate.
2.4 NOTICE OF MEETING. Unless otherwise provided by the DGCL, whenever
stockholders of the Corporation are required or permitted to take any
action at a meeting, written or printed notice of the meeting, stating
the place, date and hour of the meeting, and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, shall
be delivered not less than 10 nor more than 60 days before the date of
the meeting, either personally or by mail, by or at the direction of
the Secretary or President of the Corporation, to each stockholder of
the Corporation entitled to vote at such meeting. If mailed, such
notice shall be deemed to be delivered when deposited in the United
States mail addressed to a stockholder of the Corporation at such
stockholder's address as it appears on the stock transfer records of
the Corporation, with postage thereon prepaid. Notice of any meeting of
stockholders of the Corporation need not be given to any stockholder of
the Corporation if waived by him in writing in accordance with Section
7.3 hereof. In addition, attendance at a meeting of the stockholders of
the Corporation shall constitute a waiver of notice of such meeting,
except when a stockholder of the Corporation attends a meeting for the
express purpose of objecting (and so expresses such objection at the
beginning of the meeting) to the transaction of any business on the
ground that the meeting is not lawfully called or convened.
2.5 REGISTERED HOLDERS OF SHARES; CLOSING OF SHARE TRANSFER RECORDS; AND
RECORD DATE.
(a) REGISTERED HOLDERS AS OWNERS. Unless otherwise provided by
Delaware law, the Corporation may regard the person in whose
name any shares issued by the Corporation are registered in
the stock transfer records of the Corporation at any
particular time (including, without limitation, as of a record
date fixed pursuant to Section 2.5(b) hereof) as the owner of
such shares at that time for purposes of voting such shares,
receiving distributions thereon or notices in respect thereof,
transferring such shares, exercising rights of dissent with
respect to such shares, entering into agreements with respect
to such shares, or giving proxies with
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respect to such shares; and neither the Corporation nor any of
its officers, Directors, employees or agents shall be liable
for regarding that person to be the owner of such shares at
that time for those purposes, regardless of whether that
person possesses a certificate for such shares.
(b) RECORD DATE. For the purpose of determining stockholders of
the Corporation entitled to notice of or to vote at any
meeting of stockholders of the Corporation or any adjournment
thereof, or entitled to receive a distribution by the
Corporation (other than a distribution involving a purchase or
redemption by the Corporation of any of its own shares) or a
share dividend, or in order to make a determination of
stockholders of the Corporation for any other proper purpose,
the Board of Directors may fix in advance a date as the record
date for any such determination of stockholders of the
Corporation, such date in any case to be not more than 60
days, and in the case of a meeting of stockholders of the
Corporation, not less than 10 days, prior to the date on which
the particular action requiring such determination of
stockholders of the Corporation is to be taken. The Board of
Directors shall not close the books of the Corporation against
transfers of shares during the whole or any part of such
period.
2.6 QUORUM OF STOCKHOLDERS.
(a) QUORUM GENERALLY. Unless otherwise provided by the DGCL or the
Certificate of Incorporation, a majority of the Voting Stock,
present in person or represented by proxy, shall constitute a
quorum at any meeting of the stockholders of the Corporation.
The term "Voting Stock" shall mean all outstanding shares of
all classes and series of capital stock of the Corporation
entitled to vote generally in the election of Directors of the
Corporation, considered as one class; and, if the Corporation
shall have outstanding at any time shares of Voting Stock
entitled to more or less than one vote for any such share,
each reference in these Bylaws to a proportion or percentage
in voting power of Voting Stock shall be calculated by
reference to the portion or percentage of all votes entitled
to be cast by holders of all such shares generally in the
election of Directors of the Corporation.
(b) QUORUM WITH RESPECT TO A CLASS OR SERIES. If any outstanding
class or series of capital stock of the Corporation shall be
entitled to vote as a class or series with respect to any
matter to be submitted to a vote of the stockholders of the
Corporation at any duly convened meeting, then, with respect
to any such matter, in addition to the requirement of Section
2.6(a), a majority of the outstanding shares of such class or
series of capital stock of the Corporation so entitled to vote
shall be required to be present in person or represented by
proxy, in order to constitute a quorum.
(c) CONTINUATION OF BUSINESS. The stockholders of the Corporation
present at any duly convened meeting may continue to do
business at such meeting or at any adjournment thereof
notwithstanding any withdrawal from the meeting of holders of
shares counted in determining the existence of a quorum.
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2.7 Adjournment. Unless otherwise provided by the Certificate of
Incorporation or these Bylaws, any meeting of the stockholders of the
Corporation may be adjourned from time to time, without notice other
than by announcement at the meeting at which such adjournment is taken,
and at any such adjourned meeting at which a quorum shall be present
any action may be taken that could have been taken at the meeting
originally called; provided, however, that if the adjournment is for
more than 30 days, or if after the adjournment a new record date is
fixed for the adjourned meeting, a notice of the adjourned meeting
shall be given to each stockholder of record entitled to vote at the
adjourned meeting.
2.8 VOTING BY STOCKHOLDERS.
(a) VOTING ON MATTERS OTHER THAN THE ELECTION OF DIRECTORS. With
respect to any matters as to which no other voting requirement
is specified by the DGCL, the Certificate of Incorporation or
these Bylaws, the affirmative vote required for stockholder
action shall be that of at least a majority of the voting
stock present in person or represented by proxy at the meeting
(as counted for purposes of determining the existence of a
quorum at the meeting). In the case of a matter submitted for
a vote of the stockholders of the Corporation as to which a
stockholder approval requirement is applicable under the
stockholder approval policy of any exchange or quotation
system on which the shares of any class or series of capital
stock of the Corporation is traded or quoted, the requirements
of Rule 16b-3 promulgated under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), or any other rule
promulgated under the Exchange Act requiring a vote of
stockholders, or any provision of the Internal Revenue Code,
in each case for which no higher voting requirement is
specified by the DGCL, the Certificate of Incorporation or
these Bylaws, the vote required for approval shall be the
requisite vote specified in such stockholder approval policy,
Rule 16b-3 or such other rule promulgated under the Exchange
Act or Internal Revenue Code provision, as the case may be (or
the highest such requirement if more than one is applicable).
For the approval of the appointment of independent public
accountants (if submitted for a vote of the stockholders of
the Corporation), the vote required for approval shall be at
least a majority of the votes cast by the voting stock on the
matter.
(b) VOTING IN THE ELECTION OF DIRECTORS. Unless otherwise provided
by or pursuant to the Certificate of Incorporation or these
Bylaws in accordance with the DGCL, at a meeting of
stockholders of the Corporation at which a quorum is present,
Directors of the Corporation shall be elected by a plurality
of the votes cast by the voting stock.
2.9 STOCKHOLDER PROPOSALS.
(a) EFFECTIVE TIME. The provisions of Section 2.9(b) hereof shall
become effective upon (and notwithstanding any other provision
of these Bylaws shall not be effective with respect to any
action specified in Section 2.9(b) hereof to be taken on any
date prior to) the first date on which the Corporation has
outstanding a
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class of equity securities registered under the Exchange Act
(the "Public Status Date").
(b) PROPER BUSINESS. At an annual meeting of stockholders of the
Corporation, only such business shall be conducted, and only
such proposals shall be acted upon, as shall have been
properly brought before such annual meeting. To be properly
brought before an annual meeting, business or proposals must
(i) be specified in the notice relating to the meeting (or any
supplement thereto) given by or at the direction of the Board
of Directors in accordance with Section 2.4 hereof or (ii) be
properly brought before the meeting by a stockholder of the
Corporation who (A) is a stockholder of record at the time of
the giving of such stockholder's notice provided for in this
Section 2.9(b), (B) shall be entitled to vote at the annual
meeting and (C) complies with the requirements of this Section
2.9(b), and otherwise be proper subjects for stockholder
action and be properly introduced at the annual meeting. For a
proposal to be properly brought before an annual meeting by a
stockholder of the Corporation, in addition to any other
applicable requirements, such stockholder must have given
timely advance notice thereof in writing to the Secretary of
the Corporation. To be timely, such stockholder's notice must
be delivered to, or mailed and received at, the principal
executive offices of the Corporation not less than 120 days
prior to the scheduled annual meeting date, regardless of any
postponements, deferrals or adjournments of such annual
meeting to a later date; provided, however, that if the
scheduled annual meeting date differs from the annual meeting
date of the next preceding annual meeting of stockholders of
the Corporation by greater than 10 days, and if less than 100
days' prior notice or public disclosure of the scheduled
annual meeting date is given or made, notice by such
stockholder, to be timely, must be so delivered or received
not later than the close of business on the 10th day following
the earlier of the day on which the notice of such meeting was
mailed to stockholders of the Corporation or the day on which
such public disclosure was made. Any such stockholder's notice
to the Secretary of the Corporation shall set forth as to each
matter such stockholder proposes to bring before the annual
meeting (i) a description of the proposal desired to be
brought before the annual meeting and the reasons for
conducting such business at the annual meeting, (ii) the name
and address, as they appear on the Corporation's books, of
such stockholder proposing such business and any other
stockholders of the Corporation known by such stockholder to
be in favor of such proposal, (iii) the number of shares of
each class or series of capital stock of the Corporation
Beneficially Owned (as defined below) by such stockholder on
the date of such notice and (iv) any material interest of such
stockholder in such proposal. A person shall be the
"beneficial owner" of any shares of any class or series of
capital stock of the Corporation of which such person would be
the beneficial owner pursuant to the terms of Rule 13d-3 of
the Exchange Act as in effect on June 20, 2000; stock shall be
deemed "Beneficially Owned" by the beneficial owner or owners
thereof. The presiding officer of the meeting of stockholders
of the Corporation shall determine whether the requirements of
this Section 2.9(b) have been met with respect to any
stockholder proposal. If the presiding officer determines that
any stockholder proposal was not made in accordance with the
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terms of this Section 2.9(b), he shall so declare at the
meeting and any such proposal shall not be acted upon at the
meeting. At a special meeting of stockholders of the
Corporation, only such business shall be conducted, and only
such proposals shall be acted upon, as shall have been
properly brought before such special meeting. To be properly
brought before such a special meeting, business or proposals
must (i) be specified in the notice relating to the meeting
(or any supplement thereto) given by or at the direction of
the Board of Directors in accordance with Section 2.4 hereof
or (ii) constitute matters incident to the conduct of the
meeting as the presiding officer of the meeting shall
determine to be appropriate. In addition to the foregoing
provisions of this Section 2.9(b), a stockholder of the
Corporation shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder
with respect to the matters set forth in this Section 2.9(b).
ARTICLE III
DIRECTORS
3.1 NUMBER, CLASSIFICATION AND TENURE.
(a) POWERS OF THE BOARD OF DIRECTORS. The powers of the
Corporation shall be exercised by or under the authority of,
and the business and affairs of the Corporation shall be
managed by or under the direction of, the Board of Directors.
In addition to the authority and powers conferred upon the
Board of Directors by the DGCL, the Certificate of
Incorporation or these Bylaws, the Board of Directors is
hereby authorized and empowered to exercise all such powers
and do all such acts and things as may be exercised or done by
the Corporation, subject to the provisions of the DGCL, the
Certificate of Incorporation and any Bylaw of the Corporation
adopted by the stockholders of the Corporation; provided,
however, that no Bylaw of the Corporation hereafter adopted by
the stockholders of the Corporation, nor any amendment
thereto, shall invalidate any prior act of the Board of
Directors that would have been valid if such Bylaw or
amendment thereto had not been adopted.
(b) MANAGEMENT. Except as otherwise provided by the Certificate of
Incorporation or these Bylaws or to the extent prohibited by
Delaware law, the Board of Directors shall have the right
(which, to the extent exercised, shall be exclusive) to
establish the rights, powers, duties, rules and procedures
that (i) from time to time shall govern the Board of
Directors, including, without limiting the generality of the
foregoing, the vote required for any action by the Board of
Directors and (ii) from time to time shall affect the
Directors' power to manage the business and affairs of the
Corporation; no Bylaw of the Corporation shall be adopted by
the stockholders of the Corporation that shall impair or
impede the implementation of this Section 3.1(b).
(c) NUMBER OF DIRECTORS. Within the limits specified in the
Certificate of Incorporation, and subject to such rights of
holders of shares of one or more
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outstanding series of preferred stock of the Corporation to
elect one or more Directors of the Corporation under
circumstances as shall be provided by or pursuant to the
Certificate of Incorporation, the number of Directors of the
Corporation that shall constitute the Board of Directors shall
be fixed from time to time exclusively by, and may be
increased or decreased from time to time exclusively the
affirmative vote of at least a majority of the Whole Board.
(d) TERM. Each Director of the Corporation shall hold office for
the full term for which such Director is elected and until
such Director's successor shall have been duly elected and
qualified or until his earlier death, resignation or removal
in accordance with the Certificate of Incorporation and these
Bylaws.
(e) CLASSIFICATION. The Directors of the Corporation, other than
those who may be elected by holders of shares of one or more
outstanding series of preferred stock of the Corporation under
circumstances as shall be provided by or pursuant to the
Certificate of Incorporation, shall be divided into three
classes as provided by the Certificate of Incorporation.
(f) VACANCIES. Unless otherwise provided by or pursuant to the
Certificate of Incorporation, newly created directorships
resulting from any increase in the authorized number of
Directors of the Corporation and any vacancies on the Board of
Directors resulting from death, resignation or removal in
accordance with the Certificate of Incorporation and these
Bylaws shall be filled only by the affirmative vote of at
least a majority of the remaining Directors of the Corporation
then in office, even if such remaining Directors constitute
less than a quorum of the Board of Directors. Any Director of
the Corporation elected in accordance with the preceding
sentence shall hold office for the remainder of the full term
of the class of Directors of the Corporation in which the new
directorship was created or the vacancy occurred and until
such Director's successor shall have been elected and
qualified or until his earlier death, resignation or removal
in accordance with the Certificate of Incorporation and these
Bylaws. Unless otherwise provided by or pursuant to the
Certificate of Incorporation, no decrease in the number of
Directors of the Corporation constituting the Board of
Directors shall shorten the term of any incumbent Director of
the Corporation.
3.2 QUALIFICATIONS. Directors of the Corporation need not be residents of
the State of Delaware or stockholders of the Corporation.
3.3 NOMINATION OF DIRECTORS.
(a) EFFECTIVE TIME. The provisions of Section 3.3(b) hereof shall
become effective upon (and notwithstanding any other provision
of these Bylaws shall not be effective with respect to any
action specified in Section 3.3(b) hereof to be taken on any
date prior to) the Public Status Date.
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(b) NOMINATIONS. Subject to such rights of holders of shares of
one or more outstanding series of preferred stock of the
Corporation to elect one or more Directors of the Corporation
under circumstances as shall be provided by or pursuant to the
Certificate of Incorporation, only persons who are nominated
in accordance with the procedures set forth in this Section
3.3(b) shall be eligible for election as, and to serve as,
Directors of the Corporation. Nominations of persons for
election to the Board of Directors may be made only at an
annual meeting of the stockholders of the Corporation at which
Directors of the Corporation are to be elected (i) by or at
the direction of the Board of Directors or (ii) by any
stockholder of the Corporation who is a stockholder of record
at the time of the giving of such stockholder's notice
provided for in this Section 3.3(b), who shall be entitled to
vote at such meeting in the election of Directors of the
Corporation and who complies with the requirements of this
Section 3.3(b). Any such nomination by a stockholder of the
Corporation shall be preceded by timely advance notice in
writing to the Secretary of the Corporation. To be timely,
such stockholder's notice must be delivered to, or mailed and
received at, the principal executive offices of the
Corporation not less than 120 days prior to the scheduled
annual meeting date, regardless of any postponements,
deferrals or adjournments of such annual meeting to a later
date; provided, however, that if the scheduled annual meeting
date differs from the annual meeting date of the next
preceding annual meeting of stockholders of the Corporation by
greater than 10 days, and if less than 100 days' prior notice
or public disclosure of the scheduled meeting date is given or
made, notice by such stockholder, to be timely, must be so
delivered or received not later than the close of business on
the 10th day following the earlier of the day on which the
notice of such meeting was mailed to stockholders of the
Corporation or the day on which such public disclosure was
made. Any such stockholder's notice to the Secretary of the
Corporation shall set forth (i) as to each person whom such
stockholder proposes to nominate for election or re-election
as a Director of the Corporation, (A) the name, age, business
address and residence address of such person, (B) the
principal occupation or employment of such person, (C) the
number of shares of each class or series of capital stock of
the Corporation Beneficially Owned by such person on the date
of such notice and (D) any other information relating to such
person that is required to be disclosed in solicitations of
proxies for election of Directors of the Corporation, or is
otherwise required, in each case pursuant to Regulation 14A
under the Exchange Act (including, without limitation, the
written consent of such person to having such person's name
placed in nomination at the meeting and to serve as a Director
of the Corporation if elected), and (ii) as to such
stockholder giving the notice, (A) the name and address, as
they appear on the Corporation's books, of such stockholder
and any other stockholders of the Corporation known by such
stockholder to be in favor of such person being nominated and
(B) the number of shares of each class or series of capital
stock of the Corporation Beneficially Owned by such
stockholder on the date of such notice. The presiding officer
of the meeting of stockholders of the Corporation shall
determine whether the requirements of this Section 3.3(b) have
been met with respect to any nomination or intended
nomination. If the presiding officer determines that any
nomination
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was not made in accordance with the requirements of this
Section 3.3(b), he shall so declare at the meeting and the
defective nomination shall be disregarded. In addition to the
foregoing provisions of this Section 3.3(b), a stockholder of
the Corporation shall also comply with all applicable
requirements of the Exchange Act and the rules and regulations
thereunder with respect to the matters set forth in this
Section 3.3(b).
3.4 PLACE OF MEETING. Meetings of the Board of Directors, regular or
special, may be held either within or outside of the State of Delaware,
at whatever place is specified by the person or persons calling the
meeting. In the absence of specific designation, the meetings shall be
held at the principal office of the Corporation.
3.5 REGULAR MEETINGS. Regular meetings of the Board of Directors shall be
held at such place or places within or without the State of Delaware,
at such hour and on such day as may be fixed by resolution of the Board
of Directors, without further notice of such meetings. The time or
place of holding regular meetings of the Board of Directors may be
changed by the Chairman of the Board or the President by giving written
notice thereof as provided by Section 3.7 hereof.
3.6 SPECIAL MEETINGS. Special meetings of the Board of Directors shall be
held, whenever called by the Chairman of the Board of Directors, the
President of the Corporation or Directors of the Corporation
constituting at least a majority of the Whole Board, at such place or
places within or without the State of Delaware as may be stated in the
notice of the meeting.
3.7 ATTENDANCE AT AND NOTICE OF MEETINGS. Written notice of the time and
place of, and general nature of the business to be transacted at, all
special meetings of the Board of Directors, and written notice of any
change in the time or place of holding the regular meetings of the
Board of Directors, shall be given to each Director of the Corporation
personally or by mail or by telegraph, telecopier or similar
communication at least one day before the day of the meeting; provided,
however, that notice of any meeting need not be given to any Director
of the Corporation if waived by him in writing in accordance with
Section 7.3 hereof, or if he shall be present at such meeting.
Attendance at a meeting of the Board of Directors shall constitute
presence in person at such meeting, except when a Director of the
Corporation attends a meeting for the express purpose of objecting (and
so expresses such objection at the beginning of the meeting) to the
transaction of any business on the ground that the meeting is not
lawfully called or convened.
3.8 QUORUM OF AND ACTION BY DIRECTORS. A majority of the Directors of the
Corporation in office shall constitute a quorum of the Board of
Directors for the transaction of business; but a lesser number may
adjourn from day to day until a quorum is present. Unless otherwise
required by the Certificate of Incorporation, the DGCL or these Bylaws,
the affirmative vote of at least a majority of the Directors of the
Corporation present at a meeting at which a quorum is present, shall be
the act of the Board of Directors.
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3.9 BOARD AND COMMITTEE ACTION WITHOUT A MEETING. Unless otherwise
restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at a meeting of the Board of
Directors or any committee thereof may be taken without a meeting if a
consent in writing, setting forth the action so taken, is signed by all
the Directors of the Corporation or members of such committee, as the
case may be, and shall be filed with the Secretary of the Corporation.
3.10 BOARD AND COMMITTEE TELEPHONE MEETINGS. Subject to the provisions
required or permitted by the DGCL for notice of meetings, unless
otherwise restricted by the Certificate of Incorporation or these
Bylaws, Directors of the Corporation, or members of any committee
designated by the Board of Directors, may participate in and hold a
meeting of such Board of Directors or committee by means of conference
telephone or similar communications equipment by means of which all
persons participating in the meeting can hear each other, and
participation in a meeting pursuant to this Section 3.10 shall
constitute presence in person at such meeting, except where a person
participates in the meeting for the express purpose of objecting (and
so expresses such objection at the beginning of the meeting) to the
transaction of any business on the ground that the meeting is not
lawfully called or convened.
3.11 COMPENSATION. Directors of the Corporation shall receive such
compensation for their services as shall be determined by the Board of
Directors.
3.12 REMOVAL.
(a) No Director of the Corporation shall be removed from such
office by vote or other action of the stockholders of the
Corporation or otherwise, except by the affirmative vote of
holders of at least a majority of the then outstanding Voting
Stock, voting together as a single class. Prior to the Public
Status Date, any such removal of a Director of the Corporation
may be with or without cause. On and after the Public Status
Date, no Director of the Corporation shall be removed from
such office by vote or other action of the stockholders of the
Corporation or otherwise, except for cause, which shall be
deemed to exist only if: (i) such Director has been convicted,
or such Director is granted immunity to testify where another
has been convicted, of a felony by a court of competent
jurisdiction (and such conviction is no longer subject to
direct appeal); (ii) such Director has been found by a court
of competent jurisdiction (and such finding is no longer
subject to direct appeal) or by the affirmative vote of at
least a majority of the Whole Board at any regular or special
meeting of the Board of Directors called for such purpose to
have been grossly negligent or guilty of willful misconduct in
the performance of his duties to the Corporation in a matter
of substantial importance to the Corporation; (iii) such
Director has been adjudicated by a court of competent
jurisdiction to be mentally incompetent, which mental
incompetency directly affects his ability to perform as a
Director of the Corporation; (iv) such Director has been found
by a court of competent jurisdiction (and such finding is no
longer subject to direct appeal) or by the affirmative vote of
at least a majority of the Whole Board at any regular or
special meeting of the Board of Directors called for such
purpose to have breached such Director's duty of loyalty to
the
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Corporation or its stockholders or to have engaged in any
transaction with the Corporation from which such Director
derived an improper personal benefit; or (v) "cause" for
removal otherwise exists under Section 141(k)(1) of the DGCL.
No Director of the Corporation so removed may be nominated,
re-elected or reinstated as a Director of the Corporation so
long as the cause for removal continues to exist. On and after
the Public Status Date, any proposal by a stockholder of the
Corporation to remove a Director of the Corporation, in order
to be validly acted upon at any meeting, shall comply with
Section 2.8(b) hereof.
(b) Notwithstanding Section 3.12(a) hereof, whenever holders of
shares of one or more outstanding series of preferred stock of
the Corporation are entitled to elect one or more Directors of
the Corporation under circumstances as shall be provided by or
pursuant to the Certificate of Incorporation, any Director of
the Corporation so elected may be removed in accordance with
such provisions.
3.13 COMMITTEES OF THE BOARD OF DIRECTORS.
(a) The Board of Directors, by resolution adopted by the
affirmative vote of at least a majority of the Whole Board,
may designate and appoint from among its members one or more
committees, each of which shall be comprised of one or more of
its members, and may designate one or more of its members as
alternate members of any committee, who may, subject to any
limitations by the Board of Directors, replace absent or
disqualified members at any meeting of that committee. Any
such committee, to the extent provided by such resolution or
in the Certificate of Incorporation or these Bylaws, shall
have and may exercise all of the authority of the Board of
Directors to the extent permitted by the DGCL.
(b) The Board of Directors shall have the power at any time to
change the membership of any committee of the Board of
Directors and to fill vacancies in it. A majority of the
number of members of any such committee shall constitute a
quorum for the transaction of business unless a greater number
is required by a resolution adopted by the Board of Directors.
The Board of Directors, or each such committee in the absence
of action by the Board of Directors, may elect a chairman of
such committee and appoint such subcommittees and assistants
as it may deem necessary. Unless otherwise provided by
resolution of the Board of Directors, meetings of any
committee shall be conducted in accordance with Sections 3.5,
3.6, 3.7, 3.8, 3.9, 3.10 and 7.3 hereof. Any member of any
such committee designated or appointed by the Board of
Directors may be removed by the Board of Directors whenever in
its judgment the best interests of the Corporation will be
served thereby, but such removal shall be without prejudice to
the contract rights, if any, of the person so removed.
Election or appointment of a member of a committee shall not
of itself create contract rights.
(c) Any action taken by any committee of the Board of Directors
shall promptly be recorded in the minutes and filed with the
Secretary of the Corporation and shall be made available to
any and all Directors of the Corporation.
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ARTICLE IV
OFFICERS
4.1 OFFICERS. The officers of the Corporation shall consist of a President,
any number of Vice Presidents, a Secretary, a Treasurer and a
Controller, each of whom shall be elected by the Board of Directors.
Such other officers of the Corporation, including a Chairman of the
Board, Chief Executive Officer, Chief Financial Officer, Executive and
Senior Vice Presidents and assistant officers of the Corporation, and
agents as may be deemed necessary, may be elected or appointed by the
Board of Directors. Any two or more offices may be held by the same
person. Employees of the Corporation who serve in a capacity with an
officer's title for a division or subdivision of the Corporation shall
not be deemed officers of the Corporation with respect to such
capacity. All officers and agents of the Corporation, as between
themselves and the Corporation, shall have such authority and perform
such duties in the management of the Corporation as is provided by
these Bylaws, or as may be determined by resolution of the Board of
Directors not inconsistent with these Bylaws.
4.2 VACANCIES. Whenever any vacancies shall occur in any office of the
Corporation by death, resignation, increase in the number of offices of
the Corporation, or otherwise, the same shall be filled by the Board of
Directors, and the officer so elected shall hold office until such
officer's successor is elected or appointed or until his earlier death,
resignation or removal.
4.3 REMOVAL. Any officer or agent elected or appointed by the Board of
Directors may be removed by the Board of Directors whenever in its
judgment the best interests of the Corporation will be served thereby,
but such removal shall be without prejudice to the contract rights, if
any, of the officer or agent so removed. Election or appointment of an
officer or agent shall not of itself create contract rights.
4.4 CHAIRMAN OF THE BOARD. The Board of Directors may elect, from among its
members, a Chairman of the Board of the Corporation. The Chairman of
the Board or the President of the Corporation shall be the chief
executive officer of the Corporation, as specified by the Board of
Directors. If the Board of Directors so specifies that the Chairman of
the Board shall be the chief executive officer, the Chairman of the
Board in general shall supervise and control all of the business and
affairs of the Corporation, under the direction and subject to the
control of the Board of Directors. The Chairman of the Board shall,
when present, preside at all meetings of the stockholders of the
Corporation and of the Board of Directors. In the event of the death,
disability or other absence of the Chairman of the Board, the duties of
the Chairman of the Board may be performed by the President of the
Corporation or a Vice Chairman of the Corporation elected by the Board
of Directors. The Chairman of the Board shall perform, under the
direction and subject to the control of the Board of Directors, all
duties incident to the office of Chairman of the Board and such other
duties as the Board of Directors may assign to the Chairman of the
Board from time to time.
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4.5 PRESIDENT. The President of the Corporation or the Chairman of the
Board shall be the chief executive officer of the Corporation, as
specified by the Board of Directors. If the Board of Directors so
specifies that the President shall be the chief executive officer, the
President in general shall supervise and control all of the business
and affairs of the Corporation, under the direction and subject to the
control of the Board of Directors and the Chairman of the Board, if
any. The President may execute (in facsimile or otherwise) and deliver
certificates for shares of the Corporation, any deeds, mortgages,
bonds, contracts or other instruments that the Board of Directors has
authorized to be executed and delivered, except in cases where the
execution and delivery thereof shall be expressly and exclusively
delegated to one or more other officers or agents of the Corporation by
the Board of Directors or these Bylaws, or where the execution and
delivery thereof shall be required by law to be executed and delivered
by another person. The President shall perform, under the direction and
subject to the control of the Board of Directors and the Chairman of
the Board, if any, all duties incident to the office of President and
such other duties as the Board of Directors or the Chairman of the
Board, if any, may assign to the President from time to time. The
President shall have the power and authority to appoint one or more
Vice Presidents of the Corporation, which power shall not be exclusive
of any right of the Board of Directors to elect such officer.
4.6 VICE PRESIDENT. Each Vice President of the Corporation shall perform,
under the direction and subject to the control of the Board of
Directors and the President, such duties as the Board of Directors or
the President may assign to such Vice President from time to time.
4.7 SECRETARY. The Secretary of the Corporation shall attend all meetings
of the stockholders of the Corporation, the Board of Directors and
committees established by the Board of Directors (except where the
committee has appointed its own secretary) and to record correctly the
proceedings of such meetings in a book suitable for such purposes. The
Secretary shall attest with a signature and the seal of the Corporation
(in facsimile or otherwise) all stock certificates issued by the
Corporation and to keep a stock ledger in which all transactions
pertaining to shares of all classes and series of capital stock of the
Corporation shall be correctly recorded. The Secretary, or the
President, shall also attest with a signature and the seal of the
Corporation (in facsimile or otherwise) all deeds, conveyances or other
instruments requiring the seal of the Corporation. The Secretary shall
have full power and authority on behalf of the Corporation to execute
any consents of stockholders, members, partners or other owners and to
attend, and to act and to vote in person or by proxy in connection
with, any meetings of the stockholders, members, partners or other
owners of any corporation, limited liability company, partnership or
other entity in which the Corporation may own stock, membership
interests, partnership interests or other securities, and in connection
with any such meeting, the Secretary shall possess and may exercise any
and all the rights and powers incident to the ownership of such stock,
membership interests, partnership interests or other securities that
the Corporation, as the owner thereof, may possess and exercise. The
Secretary, or the President, shall give, or cause to be given, notice
of all meetings of the stockholders of the Corporation and special
meetings of the Board of Directors or committees established by the
Board of Directors. The Secretary is authorized to issue certificates,
to which the corporate seal may be affixed, attesting to the incumbency
of officers of the Corporation
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or to actions duly taken by the stockholders of the Corporation, the
Board of Directors or any committee established by the Board of
Directors. The Secretary shall perform, under the direction and subject
to the control of the Board of Directors and the President, all duties
incident to the office of Secretary and such other duties as the Board
of Directors or the President may assign to the Secretary from time to
time. The duties of the Secretary may also be performed by any
Assistant Secretary of the Corporation. The Secretary shall have the
power and authority to appoint one or more Assistant Secretaries of the
Corporation, which power shall not be exclusive of any right of the
Board of Directors to elect such officer.
4.8 CHIEF FINANCIAL OFFICER. The Chief Financial Officer of the Corporation
in general shall supervise all of the financial affairs of the
Corporation, under the direction and subject to the control of the
Board of Directors and the President. The Chief Financial Officer shall
have full power and authority on behalf of the Corporation to execute
(in facsimile or otherwise) any consents of stockholders, members,
partners or other owners and to attend, and to act and to vote in
person or by proxy in connection with, any meetings of stockholders,
members, partners or other owners of any corporation, limited liability
company, partnership or other entity in which the Corporation may own
stock, membership interests, partnership interests or other securities,
and in connection with any such meeting, the Chief Financial Officer
shall possess and may exercise any and all the rights and powers
incident to the ownership of such stock, membership interests,
partnership interests or other securities that the Corporation, as the
owner thereof, may possess and exercise. This power and authority shall
not be exclusive of any right of the Board of Directors to grant such
power and authority to any other person. The Chief Financial Officer
shall perform, under the direction and subject to the control of the
Board of Directors and the President, all duties incident to the office
of Chief Financial Officer and such other duties as the Board of
Directors or the President may assign to the Chief Financial Officer
from time to time.
4.9 TREASURER. The Treasurer of the Corporation shall have the care and
custody of all the funds, notes, bonds, debentures, stock and other
securities of the Corporation that may come into the hands of the
Treasurer, acting in such capacity. The Treasurer shall be responsible
for the investment and reinvestment of funds of the Corporation in
accordance with general investment policies determined from time to
time by the Corporation and shall ensure that the Corporation is
adequately funded at all times by arranging, under the direction and
subject to the control of the Board of Directors, for the issuance of
debt, equity and other forms of securities that may be necessary or
appropriate. The Treasurer may endorse (in facsimile or otherwise)
checks, drafts, notes, bonds, debentures and other instruments for the
payment of money for deposit or collection when necessary or
appropriate and may deposit the same to the credit of the Corporation
in such banks or depositories as the Board of Directors may designate
from time to time, and the Treasurer may endorse (in facsimile or
otherwise) all commercial documents requiring endorsements for or on
behalf of the Corporation. The Treasurer may deliver instructions to
financial institutions by facsimile or otherwise. The Treasurer may
execute (in facsimile or otherwise) all receipts and vouchers for
payments made to the Corporation. The Treasurer shall render an account
of the Treasurer's transactions to the Board of Directors or its Audit
Committee as often as the Board of Directors or its
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Audit Committee shall require from time to time. The Treasurer shall
enter regularly in the books to be kept by the Treasurer for that
purpose, a full and adequate account of all monies received and paid by
the Treasurer on account of the Corporation. The Treasurer shall have
full power and authority on behalf of the Corporation to execute (in
facsimile or otherwise) any consents of stockholders, members, partners
or other owners and to attend, and to act and to vote in person or by
proxy in connection with, any meetings of stockholders, members,
partners or other owners of any corporation, limited liability company,
partnership or other entity in which the Corporation may own stock,
membership interests, partnership interests or other securities and in
connection with any such meeting, the Treasurer shall possess and may
exercise any and all the rights and powers incident to the ownership of
such stock, membership interests, partnership interests or other
securities that the Corporation, as the owner thereof, may possess and
exercise. This power and authority shall not be exclusive of any right
of the Board of Directors to grant such power and authority to any
other person. If requested by the Board of Directors, the Treasurer
shall give a bond to the Corporation for the faithful performance of
the Treasurer's duties, the expense of which bond shall be borne by the
Corporation. The Treasurer shall perform, under the direction and
subject to the control of the Board of Directors, the President and the
Chief Financial Officer, all acts incident to the office of Treasurer
and such other duties as the Board of Directors, the President or the
Chief Financial Officer may assign to the Treasurer from time to time.
The duties of the Treasurer may also be performed by any Assistant
Treasurer of the Corporation. The Treasurer shall have the power and
authority to appoint one or more Assistant Treasurers of the
Corporation, which power shall not be exclusive of any right of the
Board of Directors to elect such officer.
4.10 CONTROLLER. The Controller of the Corporation shall maintain adequate
records of all assets, liabilities and transactions of the Corporation
and shall be responsible for the design, installation and maintenance
of accounting and cost control systems and procedures throughout the
Corporation. The Controller also shall keep in books belonging to the
Corporation full and accurate accounts of receipts of, and
disbursements made by, the Corporation. The Controller shall render an
account of the Controller's transactions to the Board of Directors or
its Audit Committee as often as the Board of Directors or its Audit
Committee shall require from time to time. If requested by the Board of
Directors, the Controller shall give a bond to the Corporation for the
faithful performance of the Controller's duties, the expense of which
bond shall be borne by the Corporation. The Controller shall perform,
under the direction and subject to the control of the Board of
Directors, the President and the Chief Financial Officer, all acts
incident to the office of Controller and such other duties as the Board
of Directors, the President or the Chief Financial Officer may assign
to the Controller from time to time. The duties of the Controller may
also be performed by any Assistant Controller of the Corporation. The
Controller shall have the power and authority to appoint one or more
Assistant Controllers of the Corporation, which power shall not be
exclusive of any right of the Board of Directors to elect such officer.
4.11 DELEGATION OF AUTHORITY. In the case of any absence of any officer of
the Corporation or for any other reason that the Board of Directors may
deem sufficient, the Board of Directors may delegate in writing some or
all of the powers or duties of such officer to
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any other officer or to any Director, employee, stockholder or agent of
the Corporation for whatever period of time the Board of Directors
deems appropriate.
ARTICLE V
CAPITAL STOCK
5.1 STOCK CERTIFICATES. The certificates representing shares of all classes
or series of capital stock of the Corporation shall be in such form or
forms as shall be approved by the Board of Directors, or the
Corporation's stock may be represented by uncertificated shares. In the
case of certificated shares, the Corporation shall deliver certificates
representing shares to which stockholders of the Corporation are
entitled. Certificates representing such certificated shares shall be
signed by the Chairman of the Board, the President or a Vice President
and either the Secretary or an Assistant Secretary, and may, but shall
not be required to, bear the seal of the Corporation or a facsimile
thereof. The signatures of such officers upon a certificate may be
facsimiles. In the event the original or facsimile signature on a
certificate is of an officer who has ceased to be such officer before
such certificate is issued, it may be issued by the Corporation with
the same effect as if such person were such officer at the date of its
issuance.
ARTICLE VI
INDEMNIFICATION
6.1 GENERAL. Each person who at any time shall serve or shall have served
as a Director, officer, employee or agent of the Corporation, or any
person who, while a Director, officer, employee or agent of the
Corporation, is or was serving at the written request of the
Corporation (in accordance with written procedures adopted from time to
time by the Board of Directors) as a director, officer, partner,
venturer, proprietor, trustee, employee, agent or similar functionary
of another foreign or domestic corporation, partnership, joint venture,
sole proprietorship, trust, employee benefit plan or other enterprise,
shall be entitled to (a) indemnification and (b) the advancement of
expenses incurred by such person from the Corporation as, and to the
fullest extent, permitted by Section 145 of the DGCL or any successor
statutory provision, as from time to time amended. The foregoing right
of indemnification and to the advancement of expenses shall not be
deemed exclusive of any other rights to which those to be indemnified
may be entitled as a matter of law or under any agreement, vote of
stockholders or disinterested Directors of the Corporation, or other
arrangement.
6.2 INSURANCE. The Corporation may purchase and maintain insurance or
another arrangement on behalf of any person who is or was a Director,
officer, employee or agent of the Corporation or who is or was serving
at the written request of the Corporation as a director, officer,
partner, venturer, proprietor, trustee, employee, agent or similar
functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan or
other enterprise against any liability asserted against and incurred by
such person in such capacity or arising out of such
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person's status in such capacity, whether or not the Corporation would
have the power to indemnify such person against that liability under
this Article VI or the DGCL.
ARTICLE VII
MISCELLANEOUS PROVISIONS
7.1 BYLAW AMENDMENTS. The Board of Directors is expressly empowered to
adopt, amend or repeal these Bylaws. Any adoption, amendment or repeal
of these Bylaws by the Board of Directors shall require the affirmative
vote of at least a majority of the Whole Board. The stockholders of the
Corporation shall also have the power to adopt, amend or repeal these
Bylaws at any annual or special meeting, by the affirmative vote of
holders of at least 66-2/3% of the then outstanding Voting Stock,
voting together as a single class, in addition to any other affirmative
vote that may be required by law, the Certificate of Incorporation or
these Bylaws. On and after the Public Status Date, any proposal by a
stockholder of the Corporation to adopt, amend or repeal these Bylaws,
in order to be validly acted upon at any meeting, shall comply with
Section 2.8(b) hereof.
7.2 BOOKS AND RECORDS. The Corporation shall keep books and records of
account and shall keep minutes of the proceedings of its stockholders,
its Board of Directors and each committee of its Board of Directors.
7.3 WAIVER OF NOTICE. Whenever any notice is required to be given to any
stockholder of the Corporation, any Director of the Corporation or any
member of any committee of the Board of Directors, under the provisions
of the DGCL, the Certificate of Incorporation or these Bylaws, a waiver
thereof in writing signed by the person or persons entitled to such
notice, whether before or after the time stated therein, shall be
equivalent to the giving of such notice. Neither the business
transacted at, nor the purpose of, any regular or special meeting of
such stockholders, Directors or committees need be stated in the
written waiver of notice of such meeting.
7.4 RESIGNATIONS. Any Director or officer of the Corporation may resign at
any time. Such resignation shall be made in writing and shall take
effect at the time specified therein, or, if no time be specified, at
the time of its receipt by the President or the Secretary. The
acceptance of a resignation shall not be necessary to make it
effective, unless expressly so provided by the resignation.
7.5 SEAL. The seal of the Corporation shall be in such form as the Board of
Directors may adopt.
7.6 FISCAL YEAR. The fiscal year of the Corporation shall end on the 31st
day of December of each year or as otherwise provided by a resolution
adopted by the Board of Directors.
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